The Government has today published their amendments to the Justice and Security Bill for Report Stage, following the strenuous efforts Mike Crockart and I put in during the Committee. And they have clearly made significant concessions to us as a result of the things we demanded.
First, there is a provision to make sure that Public Interest Immunity is looked at before a judge is allowed to consider a Closed Material Procedure. This was taken out by the Government during Bill Committee. Mike and I tried to put it back in, and it looks like the Government has accepted our point.
All along we have said if the real reason for this Bill is to try cases which would otherwise not be triable, then the judge has to be satisfied that PII – the existing procedure – could not be used. This amendment – together with the key amendment that colleagues forced through in the Lords which gives the judge complete discretion over whether or not a CMP should ever be allowed – should make sure that this is the case.
PII itself isn’t perfect, as it results in information being completely suppressed, for example the Litvinenko case.
But Conference was clear that they support it. And through this amendment and the Lords amendment together, we have given utter discretion to the judge to require PII first, and indeed to exhaust the PII process if they think it’s the right thing to do.
Second, the Government has put forward amendments to require a complete review of CMPs every five years, and a yearly requirement for a report on the operation of CMPs.
Again, Mike and I pushed this on the Committee. As a firm believer in the need for an evidence base for any legislation, my concern has always been that with this type of legislation you are dealing with legal hypotheticals. The requirement for reporting and reviewing will allow us to scrutinise whether the cases which the Government claims require a CMP really do exist, and it will let us review their operation. If the number of cases is higher than claimed – if the type of cases tried turn out to be inappropriate – we will know that and be able to get rid of it.
Third, there is a new amendment to ensure complete equality of arms. There are cases where the non-government party may wish to be able to use secret information in their case, even if the government doesn’t want to – for example, a former intelligence officer may know for a fact that the Government has a document supporting their case against the Government, and wants to use it in court rather than having it silenced by PII. This was another key measure that was voted in in the Lords, and the Tories tried to wriggle out of it on Committee. We argued at length that true equality was needed – and they have now conceded that.
Liberal Democrats at Conference made clear that the existing Bill stacked all of the odds in the Government’s favour – they could simply choose whether or not to use a CMP if it is in their interests; if they wanted to hide something.
There is now complete judicial discretion, plus a requirement to consider PII first. But this amendment also means that if it is in their interests, the claimant can call for a CMP. The judge will have the power to choose whichever procedure they think is most appropriate, but both sides will now have the power to petition the court for whichever procedure is in their interests. Lord Lester emphasised how vital this was to Ken Clarke, and it will now be in the Bill.
Finally, the Government has retained a provision – agreed in the Committee in the Commons – to require the judge to force the case into open court if they think partway through that it would be fairer. The concern has always been that once the case is closed down, the judge’s hands are tied. This provision gives a new power for the judge to end a CMP if it is not fair, given how the case is going. For example, if the judge thinks that the CMP means an individual has not been given sufficient evidence or gisted evidence to hear the case against them, or if they think the CMP is merely being used to hide embarrassing information rather than allow a trial where one would not otherwise be possible, they can end it and force the case into open court.
The Government has said that the Bill is intended to only try cases which would otherwise not be triable. By not having equity of arms, by not having judicial discretion, by not looking at PII first, by not providing for CMPs to be reviewed and by not giving the judge the power to end a CMP, the Government claims seemed utterly baseless and our Conference voted as such.
Clearly, Lib Dems will still have major concerns, and we’ll see what happens during the Report Stage debates. I want, for example, a concrete guarantee that this Bill does not and will not affect confidentiality rings – a new issue that Jo Shaw and others have raised with me. And better lawyers than I will I’m sure go through the exact wording with a fine toothcomb.
It seems to me that these amendments are a significant step forward – though from a place we would never start.
* Julian Huppert is Liberal Democrat MP for Cambridge.